Chand v The State [1998] FJHC 65; Haa0005j.1998b (1 May 1998)

Fiji Islands - Chand, J v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 5 OF 1998

BETWEEN:

1. JAI CHAND
f/n Sant Kumar

2. RAM BRIJ
f/n Ram Chandar
Appellap>

AND:

STATE
Respondent

M>

Mr. A.i for Firr First Appellant
Second Appellant in Person
Ms. Laisa Laveti for the State

JUDGMENT

On 5 January 1998 the fird second appellants on their own plea were convicted and send sentenced to imprisonment for 12 months of the offence of office-breaking entering and larceny contrary to section 300(a) of the Penal Code and 18 months' imprisonment of the offence of receiving stolen property contrary to s.313(1) of the Penal Code respectively by Resident Magistrate A. Kuver Esq., at the Magistrate's Court, Labasa.

Mr. Kohli for the first appellant dealing with his first ground of appeal submitted that for a first offender instead of a custodial sentence other means of sentencing would have met the ends of justice. He commented on the approach of the learned Magistrate on the manner in which he applied the principles of sentencing to the facts of this case and he referred the Court to his Worship's observations on the appellants before passing sentence.

He submitted that almost all the properties have been recovered and the appellant had pleaded guilty. He said that this is one case, bearing in mind the mitigating factors, the learned Magistrate could have shown leniency and a suspended sentence would have sufficed.

In his submission on the second ground he said that the learned Magistrate failed to follow the basic principles of sentencing in that on the same day in the same Court in Labasa Crim. Case No. 1244/97 he gave a suspended sentence (9 months suspended for 12 months) for an equally serious offence of larceny by servant.

The second appellant appeals against severity of sentence. He said that he is married with 3 children (one child is a cripple). On the day of hearing of this Appeal he said his house was burnt down and he does not know where his family will go. He is asking for leniency and a chance to be with his family.

Ms. Laveti opposed the appeal and referred the Court to a number of cases on sentencing such as LEONE NAIRAVI v THE STATE (Suva Crim. App. No. 42/96), FABIANO BIBI & ORS v STATE (Lab. Crim. App. 47/95) and PENIASI YACADRA v THE STATE (Lab. Crim. App. No. 66/97). She said that there has to be a disparity in sentencing between the appellants as it is in line with the sentencing policy for such offences.

I have considered the submissions made by both counsel and that of the second appellant. Looking at the observations made by the learned Magistrate before sentencing it would appear that a different mode of sentence would have been more appropriate bearing in mind the mitigating factors such as guilty plea, first offenders, bulk of the items stolen recovered etc. Uniformity in sentencing is very important and it should not appear that this is not being done when one notes that on the same day for just as serious an offence as these a suspended sentence was given. Not forgetting of course, just as not all offenders will go to prison, similarly, not all sentences will be the same. Each case has to be considered on its own facts and to succeed in an appeal against sentence, the court has to be satisfied that there exist to a sufficient extent circumstances entitling it to vary the order of the Court below. These are as stated in OGALO son of OWOURA v R (1954), 21 EACA 270 as follows:

"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless, as was said in James v. R. (1950), 18 E.A.C.A. 147, `it is evident that the Judge has acted upon some wrong principle or overlooked some material factor.' To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R. v. Shershewsky (1912), C.C.A. 28 T.L.R. 364."

In this case the appellants have already served 4 months of their sentence in prison and would be released in another 4 months' time after remission. The first appellant is a young offender and the learned Magistrate has spoken of the part he played in the commission of the offence. The second appellant has since his sentence lost his house in fire and has a crippled child.

For the sake of uniformity in sentencing, taking into account all the factors relevant to sentencing I consider that in the circumstances of this case ends of justice will be met by imposing a suspended sentence and the appellants should not get the impression that they are getting off scot-free.

For these reasons, I set aside the sentence of each appellant and substitute it with a different sentence. The first appellant is sentenced to imprisonment for 12 months suspended for 18 months with effect from today. The second appellant is sentenced to imprisonment for 18 months suspended for 2 years with effect from today. Each appellant is explained his liability.

To the above extent this appeal against sentence is allowed.

D. Pathik
JUDGE

At Labasa
1 May 1998

Haa0005j.98b